Summary: I. Introduction and Problem Statement. II. The Santa Fe legal framework. Law No. 14,428 and the duty of collaboration. III. The evaluation committee. Legal nature of the pre-adjudication report. IV. Limits on bidding “solve et repete” and the primacy of objective legality. V. Conclusion.

By Pablo A. Franchi () and Lisandro E. Castagno ()*

 

I. INTRODUCTION AND PROBLEM STATEMENT

The state co-contractor selection procedure is structured as an iter subject to multiple pre-established formalities, which are oriented toward guaranteeing legality, equality, concurrency, transparency, competition, and the selection of the most advantageous offer for the public interest. Far from being a simple mechanism for acquiring goods, services, or works, it represents an institutional guarantee of the legality of administrative action and an essential instrument for the protection of public assets.

Historically, doctrine and jurisprudence have debated the scope of bidders’ prerogatives regarding the preparatory acts of the Administration, especially concerning the so-called Pre-adjudication Report within the framework of a public bidding process as the default procedure for selecting the contractor.

The introduction of economic barriers known as guarantees or bidding fees has ended up configuring a subtle mechanism of procedural exclusion that naturally implies a limitation on the effective exercise of bidders’ rights to point out illegalities or irregularities likely to affect the transparency and legitimacy of the procedure and, consequently, an affront to the principle of effective administrative guardianship.

Faced with this, the need emerges to conceptualize the figure of the observation without an intention to challenge as a legitimate manifestation of the principle of collaboration and the control of legality—that is, as an autonomous category—starting from the essential premise that the bidder is a collaborator of the commissioning Administration from the very moment of their presentation in the procedure.

This is a true collaborative observation, oriented toward favoring correct administrative decision-making, where the figure of the bidder transcends the condition of a mere interested party in the adjudication to also assume an institutional role as a collaborator of the Administration in achieving the public interest compromised in the bidding procedure.

Whoever regularly participates in a bidding process not only exercises subjective rights or legitimate interests, but also contributes — through pointing out irregularities noticed during the procedure — to the strengthening of administrative legality, competitive equality, and the transparency of public contracting.

Under this conception, we understand that guarantees or challenge deposits are only constitutionally and legally exigible when the private party deduces a true administrative challenge aimed at obtaining the review of an act capable of causing grievance. On the contrary, when the submission constitutes a mere observation formulated in exercise of the duty of collaboration with the Administration and preventive legality control, such economic requirements lack legal grounds, since there is no challenge in the proper sense but rather a manifestation of the principle of good administration, procedural participation, and the state duty to adopt decisions adjusted to the legal system.

 

II. THE SANTA FE LEGAL FRAMEWORK. LAW NO. 14,428 AND THE DUTY OF COLLABORATION

Necessarily, it must be emphasized that the public law context of the Province of Santa Fe has recently been modified with the enactment of Administrative Procedure Law No. 14,428 (B.O. 12/26/2025).

Article 4, subsection d) of said regulatory framework expressly establishes the duty of individuals and legal entities to collaborate with the State in the performance of administrative functions.

This duty is not exhausted, of course, in a passive attitude of subjection; on the contrary, within the framework of a public bidding process, the bidder stands as a technical collaborator of the Administration in the search for material truth.

Certainly, when a participant brings forward elements of judgment evidencing that the proposal suggested as pre-adjudicatee is not the most advantageous offer, they are not necessarily articulating a purely selfish claim, but rather cooperating with the bidding body to prevent the consolidation of a flawed administrative act that would ultimately prove harmful to the public treasury.

Indeed, the pre-adjudication can be modified by the competent authority; hence the need to receive without further ado those observations that assist the commissioner in its task of selecting the most advantageous offer for the Administration’s interests.

This is, therefore, the exercise of a sort of multidirectional control within the framework of a pre-adjudication, where, furthermore, the pre-adjudicatee does not possess a right to result adjudicated.

Precisely for these reasons, specialized doctrine considers it of fundamental importance that a multiple and reciprocal transfer of all submissions be granted ex officio, with unrestricted access to the proceedings, so that each bidder has a formal and simultaneous opportunity to object to the other offers.

It is understood that these objections will oblige the Administration to conduct an even broader systematic and comparative study of the offers, and it is precisely this comprehensive weighting that must be carried out by the Administration when selecting the offer.

The truth is that these questioning acts, challenges, or observations of which we speak constitute a right of the bidders starting from the act of opening the offers, without any preclusion being conceivable. Sometimes rules are enacted stating that challenges are processed separately, but if they are challenges to the offers of other bidders, it is obvious that they must be taken into account when preparing the opinion during the proposal evaluation stage—a task commonly carried out by the so-called Evaluation or Pre-adjudication Committee—at the risk of falling into unreasonableness by deliberately ignoring part of the proceedings.

In this direction, it has been stated that adjudication can hardly be recommended to any random bidder without first having considered the admissibility or inadmissibility of their offers and their convenience or inconvenience in accordance with the technical-legal documentation and the arguments presented by the other bidders, whether by own initiative or at the request of the administration.

This latter reasoning, expressed with the characteristic acuity of the distinguished author, must be linked to the fact that the Evaluation Committee —whose nature we will delve into in the following title— as a decentralized, collegiate, consultative, ad-hoc, and specialized technical body, although lacking direct decision-making powers, has an opinion that is mandatory for the validity of the procedure, operating as a guarantee of due administrative process.

It is primordial, then, that officials recognize the practical relevance of these observations and of this debate among bidders, inasmuch as it not only contributes to the principle of transparency, but also allows for a better appreciation and substantiation of the decision adopted or, where appropriate, the modification of the one resulting from pre-adjudication — the latter happening with difficulty in our reality, as the administrative operator is remiss to change.

Indeed, generally those who integrate the Evaluation Committee ignore the principle of collaboration to which these statements obey, even when they possess sufficient entity to disqualify the pre-selected offer.

Despite the fact that such observations could be useful for the analysis of offers by the Evaluation Committee, they hide behind the excuse that they do not bear the characteristics of a challenge requiring specific treatment by that collegiate body.

And in that erroneous understanding, it is concluded that the statements made are not binding on the Evaluation Committee, which will analyze their admissibility and, eventually, resort to the procedure of curing non-substantial deficiencies.

It is true that this type of observation is not binding; that argument is not questioned. What is required is that the submissions containing them be duly treated by the Committee, forming an essential part of the comprehensive weighting of offers — a circumstance that, unfortunately, does not usually happen.

 

III. THE EVALUATION COMMITTEE. LEGAL NATURE OF THE PRE-ADJUDICATION REPORT

Evaluation Committees, also called Pre-adjudication Committees, constitute a technical administrative advisory service (permanent or ad-hoc), whose consultative technical competence translates into pre-adjudication, which is a proposal or advice to the administrative organ that must adjudicate; and even though it is an opinion or view, it is subject to publicity requirements and is susceptible to challenge. Let us see: technically, the Evaluation Committee is the body in charge of expressing a specialized opinion or view destined for the competent official to resolve the termination of the procedure.

It is noted that the importance of its work is crucial, as it provides this official — the highest authority of the jurisdiction in which said Committee has been constituted — with the necessary technical backing to resolve. In other words, it is the body in charge of carrying out the preliminary adjudication, values the bidders’ proposals, and issues a value judgment, stating which one seems best, thereby pre-adjudicating. The Committee’s view must contain:

  • a) the detail of all elements and requirements of each potential candidate for adjudication;
  • b) that of admissible and inadmissible offers;
  • c) the indication of the founded motives making them dismissible, as well as which ones respond to the specifications of the call, highlighting in each the eventual advantages of what is offered with the establishment of the corresponding order of merit according to the evaluation performed.

Basically, it must carry out a comprehensive evaluation of each and every one of the presented offers to finally propose, based on quantitative and qualitative selection criteria — among all points to be addressed, we evidently add the precise analysis of each observation eventually filed.

Now, in practice, many times said report is embodied in a laconic form; that is, isolated rows and columns that do not justify the pre-selection in any way other than with the brief legend reading: “it conforms to the conditions of the Specifications”.

Naturally, this manifest absence of motivation is purely arbitrary, and such arbitrariness will inexorably transfer to the subsequent administrative adjudication act, insofar as the latter will not comprise the result of a logical process adjusted to the pertinent procedure. And such a statement is invariably shared by doctrine, jurisprudence, and even by opinions of the State Attorney General’s Office of the Province of Santa Fe, in holding that the preparatory administrative activity of the Committee cannot remain exempt from the seal of reasonableness that all administrative activity must ostent to produce valid legal effects (Opinions 114:124).

In Santa Fe, as prescribed by article 139, subsection i), paragraph 3 of Decree No. 1104/2016 (pursuant to the replacement operated by recent Decree No. 0287/2026), the Pre-adjudication Report is non-binding for the deciding authority.

Although cited Decree No. 0287/2026 demands a 3% guarantee for formal challenges, Law No. 14,428 itself establishes that interested parties are not obliged to provide data already in the possession of the State (article 4, subsection c.1).

Therefore, if a bidder brings forward a simple observation warning that the pre-adjudicatee falsified data or fails to comply with the specifications, the Administration can verify this ex officio by consulting its own databases or the Unified Provider Registry (RUPC), now digitally unified by the same aforementioned decree.

It must be clear that when a bidder presents an observation without an intention to challenge, they are not discussing the discretionary valuation or the margin of appreciation of technical convenience held by the Evaluation Committee; what they are doing is denouncing a breakdown of strict legality or a flaw in admissibility or disqualification requirements.

Being a control of legality, the Committee cannot lightly allege that the submission “is non-binding” or that it lacks a fee to omit its treatment.

It deals — in doctrine’s classical categorization — with a preparatory act of administrative will, devoid of direct and immediate legal effects regarding third parties; it is an interlocutory administrative act that does not yet produce the definitive effects of adjudication but is susceptible to challenge via appellate pathways, and it is not only lawful but necessary that this preparation of administrative will count with a substantiation (the Pre-adjudication Report) sufficiently deep and transparent.

It is a simple act of the Administration, preparatory to contractual will; the pre-adjudicatee only holds a legitimate interest.

In the same orientation, the National Treasury Procurator’s Office (PTN), as well as the State Attorney General’s Office of the Province of Santa Fe, have consistently maintained that the consultative opinion does not cause state nor generate a subjective right to adjudication. Being thus, it is contradictory for the Administration to intend to tax and tariff in a rigid manner the possibility of making observations to a mere provisional view, assimilating any substantial submission to a formal challenge subject to the prior deposit of three percent (3%) of the quoted amount.

Any clause subordinating the admissibility of challenging the pre-adjudication report to the prior deposit of a guarantee whose restitution is only foreseen for the full upholding of the formulated claim is legally unviable and manifestly illegitimate. A regime of such characteristics denatures the preventive purpose of the guarantee and converts it, in practice, into a true economic sanction for the mere exercise of the right to petition and control the legality of the administrative procedure.

Indeed, the automatic loss of the deposit due to the sole circumstance of the challenge not succeeding transforms the exercise of a procedural right into a patrimonially risky activity, generating a clearly deterrent effect incompatible with the principle of effective administrative guardianship and with the Administration’s duty to guarantee access to idoneous review mechanisms of its own preparatory acts.

The admission of a clause of such tenor would additionally import a substantial alteration of the gratuity principle characterizing administrative procedure. Unlike judicial proceedings — where the intervention of an independent jurisdictional body justifies the perception of a justice tax destined to sustain the service —, administrative procedure constitutes an activity developed by the Administration itself in exercise of administrative function and in compliance with the principle of legality, reason why the access of private parties to internal mechanisms of participation, observation, and challenge cannot remain conditioned on the payment of an economic prestation operating as a barrier to access.

In short, when the guarantee ceases to fulfill a merely ordering function destined to prevent reckless challenges and comes to constitute an unavoidable cost of exercising the right of defense, it loses all constitutional reasonableness. Under such conditions, the requirement ceases to be an instrument to protect the procedure’s efficacy and becomes a mechanism discouraging administrative legality control, incompatible with the principles of good administration, due procedure, and effective administrative guardianship.

The Administration does not charge to control the legality of its own acts. That is to say, the private party should not finance the exercise of the state duty to review the procedure’s legality. That duty exists even when no one challenges.

The observation simply manifests an eventual flaw, but whoever holds the constitutional and legal obligation to verify legality is the Administration itself.

From that perspective, demanding a deposit for the State to exercise a duty proper to it implies shifting the cost of administrative action legality control onto the individual, which constitutes a manifestly unconstitutional action.

 

IV. LIMITS ON BIDDING “SOLVE ET REPETE” AND THE PRIMACY OF OBJECTIVE LEGALITY

The requirement of a prior deposit or the constitution of a guarantee as an admissibility condition for challenges formulated against the pre-adjudication report finds its theoretical foundation in the need to preserve the continuity of the bidding procedure, discouraging manifestly unfounded, abusive, or purely dilatory claims that could hinder the selection of the state contractor and compromise the timely satisfaction of the public interest.

From that perspective, the challenge guarantee constitutes a procedural ordering technique destined to disincentivize the abusive exercise of the right to challenge, procuring an adequate balance between legality control and the efficiency of administrative action. Its purpose, consequently, does not consist in restricting access to administrative review mechanisms, but in preventing behaviors incompatible with procedural good faith.

For such reasons, we can affirm that they force the bidder to think twice before challenging lightly, limiting the actions of one who does not truly intend to collaborate with the Administration and, therefore, does not pursue pointing out the substantial deficiencies of other presentations to prevent a future arbitrary adjudication act, but is solely driven by an animus to obstruct the normal procedural development.

Likewise, in the selection of the co-contractor, the gratuitous character of the administrative procedure is not affected in those cases where specifications must be obtained by interested parties prior to paying a sum of money covering reproduction costs, nor by the requirement of constituting offer maintenance or contract compliance guarantees.

This is because — through this means — the aim is to secure the seriousness of the proposal or the execution of prestations under the co-contractor’s charge.

However, when that economic requirement operates as an inescapable presupposition for the Administration to examine circumstances that could reveal the existence of substantial flaws in the selection procedure, it ceases to fulfill an ordering function to become a true modality of administrative solve et repete.

In such suppositions, the private party finds itself forced to bear a prior patrimonial burden for the Administration to exercise a duty proper to it: verifying the legality of its actions before adopting the definitive decision.

Then, the clause establishing as a condition for the admissibility of a challenge to pre-adjudication a prior deposit or the constitution of a guarantee lacks the explanation offered by the cases of aforementioned guarantees or the purchase of specifications, and cannot be founded on the discouragement of dilatory challenges given their non-suspensive effect.

It is precisely there where the constitutional and administrative limits of this technique appear. Unlike traditional tax solve et repete — whose foundation rests on the presumption of legitimacy and executory force of the fiscal credit —, in the bidding procedure there is no collecting interest or pre-existing monetary obligation justifying shifting the cost of administrative control onto the bidder.

Consequently, the challenge guarantee cannot be interpreted or applied in a manner preventing the Administration from knowing facts or circumstances susceptible to affecting the procedure’s legality.

The principle of objective legality, the duty to seek material truth, and the ex-officio control of administrative activity dictate that any serious and founded observation be examined independently of compliance with economic requirements when the illegitimacy of future adjudication could derive from it.

It is worth noting, additionally, that the jurisprudence of the CSJN in re “Astorga Bracht” and the most recent PTN opinions have eroded the absolute validity of these restrictive clauses when they operate as an insurmountable barrier to due process and effective administrative guardianship (enshrined in article 3 of Law No. 14,428).

Thus, if a bidder formulates observations omitting the deposit of the guarantee, the Administration cannot proceed to the automatic in limine rejection of the submission if its terms bring forward the existence of a grave flaw of absolute nullity or a flagrant violation of the principles of equality and transparency (article 115, Law No. 12,510).

It must not be overlooked that the Public Administration is not solely called upon to resolve claims deduced by private parties, but primarily to satisfy the public interest through the adoption of decisions adjusted to the legal system.

This assumes that throughout the administrative procedure the duty weighs upon it to pursue material truth and watch over objective legality, principles displacing any strictly dispositive conception of the procedure.

From that perspective, when a bidder brings to the bidding authority’s knowledge circumstances revealing the inadmissibility of an offer, the existence of an essential breach of the specifications, or any other flaw susceptible to affecting the legitimacy of future adjudication, the Administration cannot detach itself from that information invoking merely formal or superficial reasons, much less demand the prior compliance of economic requirements to proceed with its examination.

What is determinant is not the denomination given by the interested party to its presentation, but the Administration’s legal duty to verify the legality of the denounced facts.

In this context, the logic inspiring article 24 of Provincial Law No. 14,428 when regulating the so-called denunciation of illegitimacy is fully applicable by analogy of principles. Although said institute was conceived to enable the examination of appeals deduced out of time, its foundation transcends that specific hypothesis and rests on the prevalence of the principle of objective legality over formalistic rigorisms.

The denunciation of illegitimacy is the genus; collaborative observation is a preventive species. That is, while the denunciation of illegitimacy operates after an administrative act is issued to allow the Administration to reconsider a possible illegality despite the untimeliness of the appeal, the aforementioned observation acts before the definitive act, with an even more intense purpose: preventing illegitimacy from ever consolidating via adjudication.

And this is so because if the Administration preserves the duty to analyze an untimely claim when it reveals a possible illegitimacy of its acts, with greater reason must it examine an observation formulated during the bidding procedure itself, before the definitive decision is adopted.

In this case, the bidder’s observation does not constitute, then, a mere manifestation of subjective non-conformity, but a true mechanism of collaboration with the exercise of administrative function and as a manifestation of the principle of objective legality in the bidding procedure.

As we anticipated, whoever participates in a bidding procedure integrates it and finds themselves in a privileged position to notice breaches of specification rules, errors in technical evaluation, or circumstances that could pass unnoticed by the Administration. Disregarding those observations for exclusively ritual reasons would imply deliberately renouncing an idoneous source of information for the proper exercise of legality control.

Consequently, if the Administration omits considering an observation revealing a grave flaw in the pre-selected offer and, despite this, dictates the adjudication act, that act will be born affected in its essential elements, particularly in cause and object, under the terms of article 10 of Law No. 14,428.

Illegality will no longer derive solely from the adjudicatee’s breach of specifications, but also from the administrative omission to exercise the control of legality mandated by the legal system. Under such conditions, adjudication will remain exposed both to revocation in administrative sede and to subsequent jurisdictional challenge.

In short, an observation formulated by a bidder does not constitute a burden for the Administration, but a manifestation of the principle of procedural collaboration and an instrument destined to facilitate compliance with its constitutional and legal duty to issue administrative acts fully adjusted to the principle of legality.

Material truth and objective legality cannot remain subordinated to procedural formalisms, much less conditioned on the prior deposit of an economic guarantee for the Administration to exercise a duty proper to it.

 

V. CONCLUSION

The systemic analysis of the public legality block of the Province of Santa Fe, in light of its recent regulatory mutations, allows us to arrive at the following conclusions which we expose below:

  • V.1. The enactment of Law No. 14,428 has broken the paradigm of bidder passivity in the bidding iter; see that upon positivizing the duty of collaboration with the State (article 4, subsection d), the formulation of observations to the Pre-adjudication Report sheds its purely selfish garb to erect itself as a procedural burden of technical cooperation oriented toward postulating material truth and preserving the objective legality of the procedure. The bidder who observes does not attack the Administration; on the contrary, they co-operate with it.
  • V.2. Although the regime instituted by Decree No. 0287/2026 foresees a three percent (3%) guarantee to structure a formal challenge to the provisional pre-adjudication view, said economic barrier is un-opposable when what the private party brings forward is a simple collaborative observation of legality. Demanding the toll of solve et repete or the guarantee constitution to hear the denunciation of an absolute nullity imports a flagrant affront to the principle of gratuity and effective administrative guardianship.
  • V.3. The Evaluation Committee cannot entrench itself behind the non-binding character of observations nor the absence of a fee to decree an automatic in limine rejection. By analogical application of the institute of denunciation of illegitimacy (article 24, Law No. 14,428) and in safeguarding the principle of contracting flexibility, the Administration has the inescapable duty to ex officio verify the denounced extremes.
  • V.4. The decision to lightly omit treating a substantial observation under the pretext of formalistic rigorism seals the fate of the contracting, inasmuch as a definitive adjudication act deliberately ignoring the duly founded warnings of its bidders will suffer from an unhealable flaw in its cause and object (article 10, Law No. 14,428), remaining exposed to a secure and immediate reproach of legitimacy in judicial sede.

In sum, observation without an intention to challenge or collaborative observation (as we prefer to call it) constitutes an indispensable piece of modern due administrative process, guards the public treasury, dignifies the ethical function of the bidder as a collaborator of the Administration, and guarantees objective legality, preventing discretion in searching for the most advantageous offer from turning into the prelude of despotic arbitrariness.

 

(1) GORDILLO, Agustín, https://gordillo.com/pdf_tomo2/capitulo12.pdf, p. 515.

(2) PTN: Opinions Tome 327, Page 101, Year 2023.

(3) DROMI, Roberto, Derecho Administrativo, 11th Edition, ED. Ciudad Argentina, p. 531; see also: PTN: Opinions Tome 253 Page 167, Year: 2005.

(4) PTN: Opinions Tome 234, Page 472, Year 2000.

(5) State Attorney General’s Office of the Province of Santa Fe: Opinion No. 0067, Year 2002. Exp. No. 00101-0060343-8.

(6) GORDILLO, Agustín, https://gordillo.com/pdf_tomo2/capitulo12.pdf, p. 520.

(7) DROMI, Roberto, Derecho Administrativo, 11th Edition, ED. Ciudad Argentina, p. 531.

(8) See Law No. 19,549 (and amendments), article 1 bis, subsection c) second paragraph and in the provincial scope, Law No. 14,428, article 3.

(9) PTN, Opinions: Tome 257, Page 151, Year 2006.

(10) CSJN: «Astorga Bracht, Sergío y otro c/ COMFER- decreto N° 310/98 s/ amparo ley 16.986».

() UNR Attorney at Law, specialized in Corporate Law, Former Legal and Technical Undersecretary of the Province of Santa Fe – Founding Partner of the Law Firm «Castagno, Franchi & Marcos – Abogados».*

() UNR Attorney at Law, specialized in Administrative Law, Former Legal and Technical Secretary of the Province of Santa Fe – Founding Partner of the Law Firm «Castagno, Franchi & Marcos – Abogados».